TaxTMI 
TaxTMI 
2024 (9) TMI 3
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....the appellant filed an appeal before Commissioner (Appeals) which was rejected. It finally reached Hon'ble Supreme Court which held that the product is classifiable under TI 15(A) only. 3. The Deputy Commissioner vide his letter dated 19.09.2000 directed the appellants to pay the demand in instalments as directed and approved by BIFR. Being aggrieved, the appellants filed an appeal before the Commissioner (Appeals), the appellant took the stand the provisional assessment was not finalized since no action was taken subsequent to OIO dated 14.10.1986. The Commissioner (Appeals) vide Order-in-Appeal No. 01/2004 (H-I) CE dated 13.01.2004 rejected their appeal. Against this OIA, the appellant filed their appeal before the Tribunal. The Tribunal vide its Final Order No. 462/2007 dated 18.04.2007 held as under: 2. We have heard both the parties. There was dispute regarding the classification of Sodium Carboxy Methyl Cellulose (SCMC) between the department and the appellant. The matter was settled by the Hon'ble Apex Court against the appellant. However, the Learned SR. Counsel who appeared on behalf of the appellants pointed out that the provisional assessments were never fina....
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....e the provisional assessment for the relevant period within four months from the date of receipt of this order after due notice to the appellants following the Principles of Natural Justice. Needless to say that the appellants would render all cooperation to the Revenue in finalizing this issue. Thus, the appeal is allowed by way of remand to the Original Authority. [Emphasis supplied] 4. Thereafter, Show Cause Notice No. V/39/15/27/2007-Adjn dated 04.04.2008 was issued seeking to know as to why the provisional assessment for the period 28.02.1982 to 27.02.1986 should not be finalised holding the product under TI 15(A) and differential duty of Rs. 1,05,72,593/- was demanded. After due process, the Adjudicating Authority confirmed the demand vide Order-in-Original No. 17/2008 dated 22.10.2008 confirming the entire demand of Rs. 1,05,72,593/-. Being aggrieved, the appellants filed their appeal before the Commissioner (Appeals), who vide Order-in-Appeal No. 15/19 (H-I) CE dated 27.02.2009 dismissed their appeal. Against this OI- A, the appellants filed the present appeal before the Tribunal. On an earlier occasion, this appeal had come up before this Bench on 23.10.2018, wher....
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....g the classification of the product on 14.10.1986. Thereafter the final assessment never took place, since the proceedings in terms of Section 11A never commenced. Finally, the assessment was taken up and completed only on account of the directions of the Tribunal vide its Final Order dated 18.04.2007. He submits that within 6 months from the date of Order-in-Original dated 14.10.1986, the Section 11A proceedings should have been taken up by the Department, which was not done for the next more than 22 years. Therefore, even on this count, the confirmed demand is required to be set aside. 7. Learned AR appearing on behalf of the Respondent submits that in terms of Rule 9B of Central Excise Rules 1944, there was no necessity for the Department to issue separate show cause notice to recover the differential duty, once the assessment is finalized. Therefore, the stand taken by the appellant towards non-issue of the show cause notice under Section 11A within 6 months from the date of Order-in-Original dated 14.10.1986 is erroneous and cannot be taken into consideration. With reference to the issue of show cause notice dated 04.04.2008 issued on account of the Denovo proceedings taken....
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....impler case than a case involving valuation dispute. The Revenue was only required to calculate the Excise Duty payable for TI 15(A). The appellant had already paid the Excise Duty based on the rate of Duty applicable to TI 68. Only the Duty payable and duty paid was required to be checked to finalize the assessment and demand the differential duty. This simple procedure to finalize was not taken up for next many years and Dept. has not come out with any plausible reason for the delay 11. The relevant portions of Rule 9B of CER 1944 are extracted below : 9B. Provisional assessment to duty :- (1) Notwithstanding anything contained in these rules,- (a) where the assessee is unable to determine the value of excisable goods in terms of section 4 of the Act on account of nonavailability of any document or information; or (b) where the assessee is unable to determine the correct classification of the goods while filing the declaration under rule 173B; the said assessee may request the proper officer in writing giving the reasons for provisional assessment to duty, and the proper officer may direct after such inquiry as he deems fit, that th....
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....n accordance with the procedure established under sub-section (2) of section 11B of the Act. (6) Notwithstanding the provisions of self-assessment made in this rule, in cases of provisional assessment, the final assessment shall be made by the proper officer. 12. From the above Rule, it gets clarified that the assessment is required to be finalized, before any demand for consequential duty, if any, can be made. In the present case, no process towards finalizing the assessment, much less demanding the consequential duty, was taken up as could be seen from the records. 13. Hence, the Revenue was bound to finalize the assessment and issue the demand notice under Section 11A. However, it is on record that no such notice was issued. In the normal course, on this count itself the confirmed demand would get set aside. 14. On the other hand, it is noted that letter no. C No. I/10/11/87-Legal dated 19.09.2000 was issued by the Deputy Commissioner directing the appellant to pay the amount in instalments as directed and approved by BIFR. Here, demanding the amount without finalizing the assessment and issuing the letter which is not in conformity with Section 11A, renders th....
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....Vs Ram Chandra Trivedi (1976), Hon'ble Supreme Court held that directory order, though not mandatory in strict sense, are still required to be complied with. 17. The Tribunal, vide Final Order No. 462/2007 dated 18.04.2007, the Tribunal has held as under: "2. We have heard both the parties. There was dispute regarding the classification of Sodium Carboxy Methyl Cellulose (SCMC) between the department and the appellant. The matter was settled by the Hon'ble Apex Court against the appellant. However, the Learned SR. Counsel who appeared on behalf of the appellants pointed out that the provisional assessments were never finalized at all. In spite of the fact that the provisional assessments were not finalized the Deputy Commissioner, Hyderabad-I Division in his letter dated 19.09.2000 directed the appellant to pay the amount due in instalments as directed and approved by BIFR. The Sr. Counsel took us through the records and invited our attention to Order-in-Original dated 14.10.1986 passed by the Asst. Collector of Central Excise. The Order portion of the above mentioned Order-in-Original reads as follows: "I confirm that the goods are rightly classifiable under t....
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....this case and that Rule 9B itself was sufficient to make the demand. As observed in the earlier paragraphs, even the Adjudicating authority in his OIO dated 14.10.1986 has held that the demand under Section 11A would be made after finalization. However, the Tribunal took a lenient view of the major flaw of the Dept in the entire proceeding, i.e. non finalization of the assessment and issuing demand under Section 11A within six month's time from the date of O-I-O dated 14.10.1986. After showing this leniency to the Revenue, the Tribunal directed the adjudicating authority to complete the entire proceedings of finalizing the assessment within four months from the date of receipt of the Final Order. This order of the Tribunal itself goes on to show that the earlier confirmed demand on which the issue had reached the Tribunal, has no legal sanctity. The demand had to be made only after finalizing the assessment. For this entire process, the Tribunal had given time frame of Four months. Thus, for the Revenue which had not followed the required time-line on the previous occasion, it was of utmost importance for not to cross the time line this time. But it is seen that the Dept. has taken....
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....e the entire proceedings for determination of duty payable as a consequence to such finalization. 21. We also note from the record that the Department has not filed any Miscellaneous Application before the Tribunal seeking any modification or extension of this period. 22. Since for the second time the Revenue has failed to adhere to the time frame to finalize the assessment, as mandated by the Tribunal, we hold that the confirmed demand is legally not sustainable. We set aside the impugned Order and allow the appeal. 23. Viewing the entire proceedings on a different tangent, it is on record that the Revenue failed to finalize the assessment within the normal period. Then Tribunal intervened and saved the Revenue by directing them to complete the de-novo proceedings within Four months. Thus, a lenient view was taken by the Tribunal, which in the normal course could have set aside the impugned order confirming the demand which was made without actual finalization of the assessment. This lenient view came with a caveat that the process of determination has to be completed within four months. Finally, the proceedings were completed in about 14 months, violating the time frame ....
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....lso misplaced for the reasons already discussed supra as the said directions were not complied with within the period provided. Therefore, it is clear case where there is an inordinate and inexplicable delay in finalization or provisional assessment, issuance of SCN for demanding duty etc., pursuant to Order passed in 1986. Reliance is placed on the case of Lanvin Synthetics Pvt Ltd., Vs UOI [2015 (322) ELT 429 (Bom)] wherein Hon'ble High Court inter alia has relied on Hon'ble Supreme Court judgement holding as under: "11. In the case of "Cambata Industries Pvt. Ltd." (supra) the show cause notices were issued in September, 1973 and June, 1974, no action was taken by the department despite the petitioner failing to appear and failing to file reply. If for seventeen long years no steps were taken, then, the justification given for reopening the proceedings was not accepted by this Court and in holding so once again the Division Bench reiterated the rule in the case of "Government of India v. Citedal Fine Pharmaceuticals, Madras & Ors. [AIR 1989 SC 1771 = 1989 (42) E.L.T. 515 (S.C.)]" where the Hon'ble Supreme Court was pleased to hold that in the absence of any period of li....